Rosenauer v. Title Insurance & Trust Co.

Opinion

COMPTON, J.

Plaintiff Robert Rosenauer, as executor of the estate of Elizabeth Rosenauer, deceased, and as a beneficiary under deceased’s will, seeks to determine conflicting claims

to the

proceeds of a revocable

inter vivos

trust established by deceased. Defendant Title Insurance and Trust Company (TI) is trustee. The trial court sustained a demurrer without leave to amend to the first amended complaint. A judgment of dismissal followed. Plaintiff appeals.

The trust agreement provides in Article V as follows:

“The Trustor shall have the right

at any time during her lifetime

to amend any of the provisions of this Trust Agreement, or of any amendment thereto by an agreement in writing executed by the Trustor and the Trustee, and to revoke this Trust in whole or in part

by an instrument in writing executed by the Trustor and delivered to the Trustee.

Furthermore, not

[302]

withstanding any other provision contained in this trust instrument, the Trustor retains and shall have the right to appoint the principal, together with any income accrued or received and undistributed, of the Trust Estate as shall remain undisposed of upon her death, which power may be exercised by the Trustor’s written instrument

other than a Will

filed with the Trustee.” (Italics added.)

Deceased’s will which has been admitted to Probate provides: “This will revokes the Revocable Trust Agreement dated April 27, 1965 Number PP-15545 between myself as trustor, and Title Insurance Company and Trust Company, as the trustee.”

The will further provided: “Sixth: All funds are to come from my Trust Account at Title Insurance and Trust.” Following the admission of the will to probate, plaintiff as executor filed a copy with TI. Neither the will nor any other writing purporting to be a revocation of the trust was delivered to the trustee during the lifetime of the trustor.